A few weeks ago, while attending the Federalist Society’s annual lawyers convention, I got to chatting with UCLA law professor (and former member of the Cato Supreme Court Review editorial board) Eugene Volokh about something that a commenter to his well-known Volokh Conspiracy blog had queried: might Hillary Clinton, then just-announced as “on track” to become the next secretary of state, be constitutionally disqualified from that job? I quickly turned to Article I, section 6, clause 2 of my handy Cato pocket Constitution (I carry one in every suit jacket and can attest that they make great stocking-stuffers) to look at the source of the problem: the Emoluments Clause. Nothing against her in particular but indeed, it seemed that Sen. Clinton’s appointment — or that of any member of Congress whose term coincides with a cabinet pay raise — would violate the clear constitutional text.

I won’t rehash the arguments here, especially because both Eugene and I (and many others, including venerable Supreme-Court-justice-in-waiting-of-Obama’s-first-male-appointment Laurence Tribe) blogged about it.

Interestingly, though Congress last week passed a “Saxbe Fix” for Sen. Clinton, we now have another emoluments problem, with Sen. Ken Salazar (D-CO), whom President-elect Obama has just nominated to be his Interior Secretary.

Leaving aside the constitutional issue, that makes four senatorial vacancies (and two gubernatorial vacancies) created by the victory of the Obama-Biden ticket, including, of course, the Rod Blagojevich mess in Illinois. That has to be some sort of record, but I fear it’s the only way the incoming administration will reduce the size of government (and only temporarily at that).